Restricting political signs in a municipality is an issue ripe for litigation, Solon Law Director Thomas G. Lobe cautioned city officials last week.
Complaints from residents centering on signage linked to the Nov. 3 general election spurred discussion and debate on the dais during last week’s City Council meeting.
By a split vote, City Council moved to forward the city’s current ordinance regulating political signage to the Planning Commission for their review. Voting in favor of forwarding the matter were Councilmen Robert Shimits, William I. Russo, Jeremy Zelwin and Eugene Macke Bentley. Voting in opposition were Councilwoman Nancy E. Meany and Councilmen Robert N. Pelunis and Marc R. Kotora.
Mr. Zelwin said he has received complaints from residents involving signs being up too early, the size of some and the quantity in residential yards.
“I raised a question a month and a half ago that we have an ordinance the city is not going to enforce, and the law department doesn’t think we should enforce, so why even have it at all?”
Mr. Zelwin said he is in favor of revisiting the ordinance, which governs size, location, duration and other aspects of posting signs.
“I think there are aspects of the sign ordinance that I think make sense,” Mr. Zelwin said, such as size. “You don’t want someone putting a billboard [sized sign] on [Route] 91.” He does not agree with quantity of signs being restricted, among other provisions.
Mr. Zelwin said he wanted the matter forwarded to the planning commission as well as to have consultation from the legal department to modify the sign ordinance to something that is more enforceable.
Mr. Lobe cited legal cases that went all the way to the U.S. Supreme Court which began with municipalities restricting issues involving political signs. In those cases, the municipality ended up paying a great deal of money in litigation.
Mr. Kotora said it would be helpful to know the exact circumstances of these matters ending up in court.
“The vast majority have found sign regulations unconstitutional,” Mr. Lobe said. “And when that happens, it can be expensive.” He cited a case in Garfield Heights which ended up at the Supreme Court level.
“The last 10-11 cases have been losers,” Mr. Lobe said. “It scares law directors when you have a stream of bad cases against you, including the U.S. Supreme Court.”
Mr. Kotora said if the city is potentially looking to change the law, he wants more information on these court cases.
“I don’t think we have the liability if we are not enforcing it,” Mr. Kotora added.
“We should not have things on the books that are not enforceable,” Mr. Russo said.
“It doesn’t make sense to have rules if we are not going to follow the rules,” Mr. Zelwin added. “The administration will not enforce it as written.”
Mayor Edward H. Kraus said he will be very clear on the matter.
“As written, I have no intention of enforcing the ordinance,” he said, adding that some of the restrictions spelled out are “unconstitutional.
“You cannot restrict political speech,” he said. “The United States Supreme Court has been very clear,” he said of First Amendment rights.
“The last thing I would do as an official in the city is place us in a position where we can get sued on a First Amendment claim and lose hundreds of thousands of dollars,” Mayor Kraus said. “It would be foolish of me and irresponsible.”
There are clearly some aspects of the ordinance that can be enforced, including if a sign is in city’s right of way land or if its size is obstructing views and therefore a safety issue.
“We need to take a hard look at the ordinance and strike those parts of it that are not only unenforceable but potentially unconstitutional,” he said. “That is why we are taking it off. We should not have an ordinance if it is not going to be enforced.”
He said there may be only a small part of the ordinance left and he will be OK with that.
Mr. Pelunis said that, before the matter would go to the planning commission, “we really need to get more information to the rest of council and need to know the facts of the Garfield [Heights case].” Mr. Pelunis said he also was surprised the matter was even brought before council and then “rushed through.”
The issue needs more discussion, he said adding that changes cannot be completed in time for this year’s presidential election.
Mr. Shimits said he did not object to the committee review, but Mr. Lobe has to do research on the matter before City Planning Director Robert S. Frankland can write up a revised ordinance.
Mrs. Meany said it is a “loaded subject matter,” and if changes are going to be made, it must ultimately go to the planning commission. But she voted no because there are so many legal issues that first need to be researched before moving forward.
“Planning has enough on their plates,” Mrs. Meany said. “I look at it as a legal issue at this point in time.”
Mr. Russo said he also receives complaints from residents. “We are either going to enforce it or revise it,” he said.